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In Handston Investments Ltd v Abri Group Ltd, the High Court dismissed an application for an interim injunction to halt continuing construction, despite an admitted rights of light infringement being demonstrated using the industry standard Waldram method.
In rights-of-light disputes, the difference between an interim injunction and a permanent injunction is significant in determining whether a development can proceed or be altered.
An interim injunction is a temporary court order granted before a full trial to prevent further interference with a property owner’s right to light. This is typically sought when construction is ongoing and the claimant wants to halt progress until the court reaches a final decision. Courts consider factors such as urgency and whether the claimant will suffer irreparable harm if the development continues.
On the other hand, a permanent injunction is granted after a full trial and can force a developer to modify or even demolish a structure if it unlawfully infringes on a neighbour’s right to light. However, courts may sometimes award damages instead of an injunction if the loss of light is minor or if ordering demolition would be disproportionate.
Ultimately, an interim injunction temporarily maintains the status quo, while a permanent injunction can lead to long-term changes to a development or financial compensation.
The building owner is a not-for-profit housing association that acquired the development site in Broadstone, Dorset, with the benefit of planning permission, which was granted in 2020. The development proposed a four-storey building on the site, to provide 33 units for affordable housing. The adjoining owner has owned their fully let office building since 1992 and has enjoyed uninterrupted light over the development site for over 20 years.
Shortly before work commenced on site, a site inspection was undertaken of the adjoining owner’s property, which showed a material loss of light. A remedy was sought so that any loss of light could be identified and if possible, resolved by means of compensation.
During subsequent discussions, the adjoining owner sought to persuade the building owner to amend the scheme to avoid causing a right of light infringement. This attempt was not successful, and the building owner refused to stop work. This led to draft proceedings being served and later issued by the adjoining owner, who, as well as applying for an interim injunction was prepared to give a cross-undertaking in damages.
At the time of the hearing, the development had reached first floor level and was about to (if it had not done so already) reach a critical point when the infringement would occur.
The judge, Mr Justice Trower, applied the established American Cyanamid principles to determine whether there was an adequate case for the granting of an interim injunction:
The judge concluded that there was a serious issue to be tried, with the development giving rise to a ‘…likely and lasting infringement’. However, it was noted that the surveyors were not in agreement with the correct approach for modelling the extent of the potential light loss and the extent to which an interference would occur.
On the balance of convenience, the adjoining owner argued that it was protecting a property right and cited the risk of a long-term interference with said right if an injunction was refused at this time. Furthermore, it was acknowledged that the building owner had proceeded with the development as planned aware that it would cause an infringement of rights.
It was argued, though, that apart from an objection at planning by the tenant, there was no further evidence that the tenant raised a complaint, and the adjoining owner would continue to receive the rent to which it was entitled. In contrast, an interim injunction would lead to delay costs of around £40,000 per week for the building owner. The time between when planning permission was granted and the adjoining owner issuing proceedings was also noted.
When determining the case, the judge made reference to Midtown Ltd v City of London Real Property Co Ltd [2005], a case in which DPR acted for the defendant, whereby a prohibitory injunction was refused in part due to the claimant’s interest being largely financial. With this and other factors in mind, the judge decided that damages would adequately compensate the adjoining owner, and therefore, an interim injunction was not granted.
The case was settled out of court before an injunction could be decided upon.
This case highlights that even if an infringement of light occurs, this does not guarantee that an interim injunction will be granted, especially when:
Rights of light claims are complex, and interim injunctions remain rare due to the need for a robust cross-undertaking in damages. This judgment highlights the court’s balancing act between development needs and property rights, particularly in a housing crisis.
Ultimately, this judgement demonstrates that a developer’s risk of an interim injunction is very much determined based on the intricacies of a specific case, and so there is no one-size-fits-all approach that can be advised upon. This case provides some guidance as to where the risk is lower, but it must be recognised that the risk is never nil.
While the risk of an interim injunction can never be entirely eliminated, developers can take proactive steps to reduce exposure:
Engage experienced rights of light surveyors at the planning stage to assess potential risks and incorporate mitigation strategies into the design.
Engage with affected neighbours early, offering compensation and securing deeds of release where possible. Timely negotiations reduce the likelihood of legal action.
Specialist rights of light insurance can cover financial risks, including delay costs if an injunction is granted. Consulting a broker ensures tailored coverage.
For developments involving public land or local authority support, Section 203 allows for the overriding of rights of light in exchange for financial compensation, eliminating the risk of an injunction.
Each development has different risks and surrounding contexts, and in particular instances, more strategies and options are available. We at DPR take a tailored approach to ensuring the risk mitigation strategy is fit for the purpose based on the uniqueness of the site’s requirements. Our clients have benefited from this customised approach, both financially and by allowing the successful implementation of their scheme.
Contact us today to discuss your latest project.
